The “Pena Quorum Principle”: Open-Meetings Act Violations Demand Quorum Action for County-Official Recall

1. Introduction

In Pena v. Rio Arriba County Commissioner, No. S-1-SC-40411 (N.M. July 9, 2025), the New Mexico Supreme Court confronted a contentious recall effort aimed at County Commissioner Alex Naranjo for allegedly deciding—outside a public meeting—to reinstall a controversial statue of Don Juan de Oñate on county property. The litigation required the Court to determine whether there was probable cause that Commissioner Naranjo violated the state’s Open Meetings Act (“OMA”), thereby committing malfeasance or misfeasance sufficient to allow circulation of a recall petition.

The central dispute was not about the merits of reinstalling the statue, but about process: whether the decision was made in a manner that contravened the OMA’s transparency requirements. The district court found probable cause and allowed the recall petition to proceed. On direct appeal, the Supreme Court reversed, holding that the OMA applies only when a quorum of the policymaking body acts. Because the record showed, at most, unilateral action by Commissioner Naranjo, no OMA violation—and therefore no malfeasance—could be established.

The decision cements a clear rule—here dubbed the Pena Quorum Principle—that “a single public official cannot, acting alone, violate the Open Meetings Act for purposes of recall; OMA liability requires action by a quorum of the governing body.”

2. Summary of the Judgment

• The Court reversed the district court’s probable-cause finding and ordered dismissal of the recall petition.
• It held that, under Paragon Foundation, Inc. v. N.M. Livestock Bd., 2006-NMCA-004, the OMA applies only when a quorum of the policymaking body participates in the challenged action.
• Because Rio Arriba County has a three-member commission, a quorum requires at least two members. The district court found only that Commissioner Naranjo (and possibly the county manager) acted; it made no finding that a quorum acted.
• Absent a valid OMA violation, the constitutional requirement of “malfeasance or misfeasance” for recall of a county official was not met.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Paragon Foundation, Inc. v. New Mexico Livestock Board, 2006-NMCA-004
   – The Court of Appeals interpreted § 10-15-1(B) to mean the OMA is triggered only by a quorum. Pena elevates this interpretation to Supreme Court precedent, making it binding statewide.
2. Trujillo v. Gonzales, 1987-NMSC-119
   – Held that actions by less than a quorum are “not valid acts” under § 10-15-3. Pena uses Trujillo to reinforce that an OMA violation cannot be premised on individual action.
3. Doña Ana County Clerk v. Martinez, 2005-NMSC-037
   – Confirmed that an OMA violation can constitute malfeasance or misfeasance. Pena clarifies the scope of that proposition: only quorum-based violations qualify.
4. New Mexico Constitution, art. X, § 9 (County recall)
   – Provides procedural guardrails requiring a district-court probable-cause finding before petition circulation. Pena construes the provision narrowly to protect elected officials from premature recall where OMA liability is unsubstantiated.

3.2 Court’s Legal Reasoning

The Court undertook a straightforward plain-language statutory analysis:

• Section 10-15-1(B) declares that all meetings of a quorum of members of any policymaking body must be public.
• Section 10-15-3(A) invalidates any action not taken at a meeting held in accordance with the OMA.
• Citing Paragon, the Court held that “if a quorum did not act, the OMA is inapplicable.”
• Because the district court’s order never found that a quorum of the three-member commission reached or implemented the statue decision, the prerequisite OMA violation was legally impossible.

Crucially, the opinion reframed the district court’s inquiry: the relevant question is not Who actually made the decision? but rather Was the decision made by a quorum? Without the latter, OMA cannot supply the “malfeasance” hook needed for recall.

3.3 Potential Impact

1. Recall Petitions State-Wide
   Petitioners must now plead and prove quorum involvement at the probable-cause stage. Expect more rigorous evidentiary showings (emails, minutes, voting records) before recall petitions survive judicial screening.
2. Strategic Conduct by Officials
   Individual officials may feel freer to confer privately so long as fewer than a quorum is present. Transparency advocates may push for statutory amendments tightening “rolling quorum” or serial-meeting rules.
3. County and Local Government Training
   Counsel will emphasize quorum rules in OMA trainings. Written policies may require that any action arguably constituting “public policy” be formally agendized, minimising litigation risk.
4. Judicial Economy
   Pena provides a clear, easily applied filter for district courts: No quorum, no OMA case, no recall. This should reduce interlocutory appeals and inconsistent trial-court rulings.
5. Legislative Response
   The Legislature could decide that important unilateral actions by executives ought still to be public and amend OMA accordingly. Pena may galvanise such policy debates.

4. Complex Concepts Simplified

• Open Meetings Act (OMA) – New Mexico statute guaranteeing that policymaking by governmental bodies occurs in public. If violated, resulting action is invalid.
• Quorum – The minimum number of members required to conduct official business. For a three-member commission, two members form a quorum.
• Malfeasance vs. Misfeasance –
  • Malfeasance: intentional wrongdoing or unlawful conduct in office.
  • Misfeasance: lawful act performed in an illegal or improper manner.
  Either can justify recall, but both demand violation of a legal duty.
• Probable Cause Hearing (Recall Context) – A preliminary judicial screening to ensure recall petitions rest on credible evidence of statutory/constitutional wrongdoing before taxpayers finance an election.

5. Conclusion

Pena v. Rio Arriba County Commissioner is significant not for its resolution of a cultural dispute over a historical monument, but for its doctrinal contribution: only decisions involving a quorum can violate New Mexico’s Open Meetings Act for purposes of recalling an elected county official. By elevating the Court of Appeals’ analysis in Paragon to Supreme Court authority, the decision safeguards public officials from recall based on unilateral or non-quorum conduct while simultaneously clarifying the evidentiary burden that future petitioners must meet.

Going forward, litigants—and the public—must recognize that transparency statutes like the OMA are collective-action statutes. The Pena Quorum Principle ensures that alleged violations must be collective in nature, thereby aligning procedural safeguards for recall with the statutory text and the New Mexico Constitution’s balance between accountability and stability in local governance.